MSLaw Blog

The National Labor Relations Board (NLRB) issued a controversial decision last year significantly limiting a company’s ability to implement and enforce uniform and dress code policies. In Tesla, Inc., 317 NLRB No. 131 (2022), the NLRB said Tesla could not prohibit employees from wearing pro-union shirts at work absent “special circumstances” justifying the prohibition. The Board reached its decision even though Tesla’s dress code policy was content-neutral (requiring only that employees wear Tesla-issued shirts) and even though employees could still

As the Covid-19 pandemic drifts further into the rearview, many companies are rolling back work-from-home policies and requiring employees to return to the office on a schedule similar to pre-pandemic office hours, with renewed attendance requirements. Many executives say their companies are more innovative and collaborative when employees are physically present in the office, which in turn increases revenue, productivity and employee retention. After several years of work-from-home, however, some employees are opposed to return-to-office mandates. Employees seeking an exemption from

The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently entered into a new Memorandum of Understanding (MOU) under which the two agencies have agreed to work together to foster interagency cooperation and coordination through information sharing, referrals, training and outreach, with a particular focus on enforcement of the anti-retaliation provisions of the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act), as well as other whistleblower provisions under laws falling

The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media. (The guidance was first released in 2017 but was never finalized.) Expansions on Protected Classes The proposed guidance expressly references the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on employment discrimination “because of

Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on

Sharing personal data across borders is critical for organizations operating and doing business internationally. Doing so in compliance with data security and privacy laws, however, can be a complex and challenging exercise due to the differing protections and transfer mechanisms across jurisdictions and countries. Thanks to recent developments between the United States, European Union and United Kingdom, U.S. companies once again have an easier pathway to share and receive data from their business partners and related entities in the EU

Deputy Attorney General Lisa Monaco announced a new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions on Wednesday. Pursuant to this new policy, the DOJ will not prosecute companies that self-report potential violations occurring within an acquisition target's business. Here are the key parameters of the M&A self-disclosure policy: The self-disclosure must be made within six months of a deal's closing. The six-month threshold applies whether the misconduct was discovered pre- or post-acquisition. The acquirer will have one

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

In July, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in New York. We also wrote about a Minnesota law that went into effect in July, banning nearly all post-employment noncompetes entered into on or after July 1, 2023. As the attack on noncompetes continues at the federal and state levels, California Gov. Gavin Newsom recently signed legislation to amend California’s noncompete

The end of the federal fiscal year is rapidly approaching with no compromise in sight. Unless an appropriations bill or continuing resolution is passed by Congress before Oct. 1, a lapse in appropriated funds will occur, causing a government shutdown. Shutdowns are inevitably disruptive for federal contractors, but the impact will vary depending on whether the contract is already funded, whether the work is considered “essential,” and whether the contractor requires access to federal facilities or approvals from non-essential federal

The Equal Employment Opportunity Commission (“EEOC”) and the Wage and Hour Division of the Department of Labor (“WHD”) entered into a far-reaching Memorandum of Understanding (“MOU”) last week under which the two agencies agreed to work together to increase enforcement of the federal laws administered by the two agencies through information sharing, joint investigations, training and outreach. Key Elements Information Sharing Under the MOU, the WHD and the EEOC may share any information or data that supports the other agency’s enforcement activities, whether the

Employers in New York can no longer discipline employees who opt not to attend “captive audience” meetings under a new state law. Employers generally hold these mandatory meetings to express their views on unionization to their workforce. The new law amends Section 201-d of the New York State Labor Law, which already prohibited employer discrimination on the basis of an individual’s political activities, off-duty use of cannabis and union membership. The amendment specifically prohibits employers from requiring attendance at meetings where

The National Labor Relations Board in August broadened the scope of what constitutes “protected concerted activity” under federal labor law with two key decisions. In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), the Board returned to a “totality of the circumstances” approach to evaluating whether an employee’s activity is concerted within the meaning of the National Labor Relations Act (“the Act”). In American Federation for Children, Inc., 372 NLRB No. 137 (2023), the Board held that advocacy efforts

The National Labor Relations Board (NLRB) issued companion decisions last month that significantly limit an employer’s ability to change the working conditions of their unionized staff without bargaining with the union. Wendt Corporation In Wendt Corporation, 372 NLRB No. 135 (2023), the Board reaffirmed the Supreme Court decision in NLRB v. Katz, 369 U.S. 736 (1962). Under Wendt and Katz, employers are prohibited from unilateral action informed by a large measure of discretion, even where the action is consistent with a longstanding

The U.S. Department of Labor (DOL) announced Wednesday a proposed rule that would increase the minimum salary threshold for exempt employees under the Fair Labor Standard Act (FLSA). DOL said the standard salary level for exempt employees would increase from $35,568 per year to $55,068 per year if the rule is implemented. Additionally, the total annual compensation threshold for highly compensated employees would increase from $107,432 to $143,988 per year. The proposal also includes a provision that would trigger automatic updates

The National Labor Relations Board (NLRB) signaled last week its preference that employers voluntarily recognize unions based on “card check” rather than a secret ballot election. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the Board also turned the current union organizing framework on its head by making it an employer’s responsibility – rather than a union’s – to file an election petition with the NLRB. This decision, in conjunction with the Board’s final election rule that takes

On Aug. 25, the National Labor Relations Board (NLRB) published a Final Rule that will reduce the time between the filing of a union election petition and the date the election occurs. The new rule largely reverses the 2019 election rules (“2019 Rule”) instituted by a then-Republican Board and returns to the Board’s election procedures in place since 2014, which critics have labeled “quickie election” rules. The Board previously rescinded parts of the 2019 Rule that were struck down last year

Almost a year to the day after the Build America Buy America Act (BABA) became law, the federal Office of Management and Budget (OMB) has published its “Final Guidance for Grants and Agreements” intended to implement BABA’s domestic content preference requirements (88 FR 57750, Aug. 23, 2023). BABA and Prior OMB Guidance BABA was enacted last August as part of the Infrastructure Investment and Jobs Act (IIJA) (see sections 7091-70927, Pub. L. 117-58, 135 Stat 429). It imposes Buy America preferences for

We continue to track updates to the Pregnant Workers Fairness Act (“PWFA”) that took effect June 27.[1] On Aug. 7, the EEOC released its Notice of Proposed Rulemaking for implementing the PWFA (“Proposed Rule” or “Proposed Regulations”). The Proposed Regulations were published to the Federal Register on Aug. 11, starting the 60-day public comment period. In the interim, the Proposed Regulations provide employers with a glimpse into the EEOC’s enforcement strategy. While the PWFA is similar in some respects to

On Aug. 2, the National Labor Relations Board (NLRB)  set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces  when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023). The new standard skews heavily in favor of employees and unions and overrules the more employer-friendly precedent in place since 2017. Unfortunately, however, Stericycle provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard. The New

On June 30, 2023, the Supreme Court rendered its long-awaited decision in 303 Creative LLC v. Elenis, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that would conflict with her religious beliefs. Background Under the Colorado Anti-Discrimination Act (“CADA”), all “public accommodations” are prohibited from denying the “full and equal enjoyment” of its goods and services and may not refuse to serve a customer based on their race, gender, age, sexual orientation, or any

COVID-19-related temporary flexibilities for Form I-9 end July 31, and employers face the daunting task of completing in-person physical document inspections for employees whose documents were inspected remotely by Aug. 30. The newly announced alternative remote I-9 document examination procedure authorized by the Department of Homeland Security (DHS) provides much needed and welcome relief for qualified E-Verify employers. Effective July 31, the COVID-19 flexibilities that had permitted employers to remotely examine I-9 documents under certain circumstances since March 20, 2020 will

The Supreme Court ruled unanimously last month in favor of an evangelical Christian postal worker who refused to work on Sundays due to Sabbath observance. In Groff v. DeJoy, while declining to overturn its longstanding precedent for establishing undue hardship in the context of religious accommodations, the Supreme Court clarified its prior interpretation from 1977 in Trans World Airlines v. Hardison, holding that, to deny a religious accommodation on the basis of undue hardship, an employer must show that the

The Centers for Medicare & Medicaid Services (CMS) published a Request for Information (RFI) on July 18 regarding the design of a future, episode-based payment model on behalf of CMS’s Center for Medicare and Medicaid Innovation (the Innovation Center). Comments in response to the RFI should be submitted by Aug. 17 either online or by mail. The Innovation Center seeks information from the public to supplement its previous experience with other episode-based payment models, like the Bundled Payment for Care Improvement

Earlier this month, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in the state. Now, yet another state, Minnesota, has banned nearly all post-employment noncompetes entered into on or after July 1, 2023. Broad Ban on Noncompetes Gov. Tim Walz signed into law May 24 a bill prohibiting employers from entering into noncompete agreements with employees or independent contractors. The Minnesota law defines a

In a landmark decision, the Supreme Court held last month that race-based college admissions programs violate the U.S. Constitution’s promise of equal protection under the law. The main issue before the court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. was whether the admissions systems used by Harvard and UNC, two of the oldest institutions of higher learning in the United States,

The Supreme Court came down hard on unions last month when it held that a company may bring state law tort claims against a union for property damage caused during a strike. The court held that the federal law governing labor disputes – the National Labor Relations Act (“NLRA” or the “Act”) – did not preempt the company’s state law claims. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, a concrete company brought

The National Labor Relations Board (“NLRB” or “the Board”) continued its course of reversing Trump-era law by issuing a decision last month that will make it easier for workers to establish “employee” – as opposed to “independent contractor” – status within the meaning of the National Labor Relations Act (“the Act” or “NLRA”), thereby giving more workers the right to unionize in private-sector workplaces. In The Atlanta Opera, Inc., 372 NLRB No. 95, the Board found that makeup artists, wig artists

The New York State Assembly, during a special legislative session last month, passed a bill that, if signed by the governor, will prohibit nearly all noncompete agreements for workers. With the passage of the bill, New York is poised to join California and a handful of other states that have banned noncompetes regardless of salary level or job function. Broad Ban on Noncompetes The bill contains a near-total ban of noncompete agreements for employees, and potentially independent contractors, based in New York. On

The wait is over! The Pregnant Workers Fairness Act (“PWFA”) took effect June 27. Employers who haven’t already done so should familiarize themselves with the law’s requirements and take any steps necessary to ensure they are following the new law, including giving proper consideration to requests for reasonable accommodations raised by pregnant employees. We are still waiting on exact guidance from the Equal Employment Opportunity Commission (EEOC) as to what could be considered a reasonable accommodation, which the agency should issue

The U.S. Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the U.S. Department of Justice (“DOJ”), announced late last month proposed changes the premerger notification form and rules under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The proposed changes would substantially increase the amount of information and level of review required by filing parties. A significant increase in the time required to prepare filings and heightened antitrust scrutiny of transactions are likely

Last week, the U.S. Supreme Court held that litigation before the district court must be halted when a party appeals a denial of a motion to compel arbitration. In Coinbase v. Bielski, the court resolved a split among lower courts as to whether a stay of the proceedings was required during an interlocutory appeal on the question of arbitrability. This decision impacts countless business and consumer contracts containing arbitration clauses governed by the Federal Arbitration Act. Pointing to its holding in

The U.S. Department of Defense (DoD) recently issued a proposed amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) that tightens “Buy American” thresholds for DoD procurements. The Proposed Rule supplements and largely mirrors the Federal Acquisition Regulation (FAR) implementation of President Joe Biden’s Executive Order (E.O.) 14005, “Ensuring the Future is Made in All of America by All of America’s Workers,” while incorporating several DoD-unique requirements. Most importantly, the Proposed Rule introduces the following changes: Increases the Domestic Content Threshold.

It is not any exaggeration to say that mentor-protégé joint ventures (MPJVs) have taken over the world of set-aside Government-Wide Acquisition Contracts (GWACs). For example, late last year it was reported that the initial award list for CIOSP4 small business was entirely or mostly comprised of mentor-protégé joint ventures.[1] As a result, there is growing sentiment that using an MPJV is now required to win a seat on large, set-aside vehicles. This understanding has been reinforced by the recent changes

In a continued effort to crack down on provisions in employment agreements, the National Labor Relations Board’s General Counsel (“GC”) announced that she will find most noncompete agreements between private sector employers and non-supervisory employees unlawful, absent special circumstances justifying the noncompete. In the memo, which was released to the NLRB’s field offices May 30, Jennifer A. Abruzzo concluded that noncompete agreements hinder employees in the exercise of Section 7 rights – that is, their right under the National Labor Relations

Over the past three years, employers have navigated various workplace issues impacted by the COVID-19 pandemic, including remote work, vaccination, contraction of COVID-19 in the workplace and workplace accommodations, among many others. Since March 2020, the Equal Employment Opportunity Commission (“EEOC”) has maintained and updated guidance to assist employers with this process. Last month, the federal Public Health Emergency for COVID-19 (“PHE”) – which had been in place since early 2020 – officially ended. In its most recently updated guidance,

As we noted on the blog in February and discussed during our annual Hot Topics in Employment Law Seminar on April 25, the Pregnant Workers Fairness Act (“PWFA”), which will require employers subject to Title VII to provide covered employees with reasonable accommodations necessitated by pregnancy, childbirth or related medical conditions, will take effect June 27, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act, which expands existing employer obligations to include providing pumping breaks for exempt employees covered

Employers are increasingly relying on electronic systems to supplement – and, at times, supplant – the work of actual human employees relating to certain hiring, retention and employee-management practices. Such systems are often utilized or viewed as a measure to increase efficiency, reduce human error, decrease costs and optimize performance metrics. Of particular note in this arena is algorithmic decision-making tools, such as artificial intelligence (“AI”). At its essence, AI leverages computers and machines to mimic the problem-solving and decision-making capabilities of

The Montgomery County Department of Finance published the required biennial update of its development impact taxes for transportation and public school improvements May 1. These taxes must be paid prior to the issuance of building permit(s) for a project. Absent County Council action to the contrary, effective July 1, all transportation impact tax rates will increase by 9.47%. This increase represents the change in the Engineering-News Record's Baltimore Construction Cost Index for calendar years 2021 and 2022. Meanwhile, most school impact

One year after Maryland’s Paid Family and Medical Leave Insurance Program (“FAMLI”) was established by the Time to Care Act of 2022 (the “Act”), the General Assembly passed SB 828, which modifies multiple provisions of the program. (An overview of FAMLI as initially enacted can be found here.) Gov. Wes Moore signed the bill into law May 3. Notable Changes to the FAMLI Program The Act initially required covered employers — those with 15 or more employees — to begin contributing to

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 21st annual Hot Topics in Employment Law seminar April 25 to clients from throughout Maryland and beyond. Topics covered included employee pay updates; the proposed federal ban on non-competes; attacks on confidentiality clauses in employment agreements; federal and state leave law updates; and the myriad issues raised on a day-to-day basis with human resources professionals, including health and safety issues in the workplace, the impact of changing cannabis

The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will make it more difficult for employers to discipline employees for bad behavior at work if the behavior occurs in the context of discussions or protests over working conditions. The decision applies to private sector employers in union and non-unionized work environments. In Lion Elastomers LLC, 372 NLRB No. 83,

The Maryland Comptroller’s Office issued a Tax Alert on April 11, 2023, addressing policy and procedural changes to pass-through entity (PTE) filings and payments. For tax years beginning after Dec. 31, 2022, PTEs are required to elect (or not elect) to pay tax at the entity level on all members’ shares of income or pay the mandatory tax on behalf of its nonresident members by the first filing or tax payment for the applicable tax year. Additionally, the annual election (or

The federal Department of Education released a notice of proposed rulemaking earlier this month addressing gender identity and participation in athletics. The long-anticipated proposed regulation, which would amend Title IX regulations, follows two years of outreach to various stakeholders, including the June 2021 nationwide public hearing assembled by the department’s Office of Civil Rights involving live testimony from over 280 individuals and submission of more than 30,000 written comments. The department states this process provided valuable information regarding the desire from

In an era of fluctuating obligations, ramped-up enforcement and increased penalties, employers are wise to ensure they are fully compliant with current Occupational Safety and Health Administration (OSHA) recordkeeping and electronic reporting requirements. Current Requirements Employers with more than 10 employees have long been required to maintain a record of work-related fatalities, injuries and illnesses using OSHA 300, 300A, and 301 forms (or equivalent forms for establishments not partially exempt based on industry). For covered employers, severe injuries and fatalities must be

The COVID-19 pandemic spurred countless businesses to transition to a remote workforce. Today, despite the public health emergency ending May 11, many of those workforces remain fully or partially remote. To that end, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin in February regarding telework under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). The Bulletin discusses what FMLA and FLSA compliance looks like when a business employs teleworkers and how

The White House Office of Management and Budget (OMB) issued a Proposed Rule and Notification of Proposed Guidance to federal agencies earlier this year regarding the implementation of the Build America, Buy America Act (BABA), which imposes a government-wide preference for domestically produced iron and steel, manufactured products, and construction materials in federal infrastructure projects. The Proposed Rule builds upon the White House guidance for BABA released in April 2022. Although confusingly styled as “guidance,” the Proposed Rule proposes definitions

The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all private employers in the U.S., regardless of size, and requires them to provide unpaid leave for up to five years for certain absences related to an employee’s service in the military. While employers may choose to pay for a portion of this time, there was no requirement to do so – until this year. USERRA generally requires employers to provide the same “rights and benefits” to employees during a

(UPDATE, April 11: Senate Bill 686 was approved in both chambers and awaits the signature of Maryland Gov. Wes Moore before becoming law.) The Maryland Senate recently passed Senate Bill 686, also known as “The Child Victims Act of 2023,” which, if enacted, would erase the time limit for childhood sexual abuse survivors to file civil lawsuits. Under Maryland’s current law, there is no statute of limitations on criminal charges of child sex abuse but, since 2017, survivors of child sex

The National Labor Relations Board’s decision last month in McLaren Macomb, holding that the mere proffer of a severance agreement containing a broad confidentiality or non-disparagement clause violates federal law, left many employers questioning what to do with their existing severance agreements and wondering about the practical implications of the decision. (We wrote about the Board’s decision here.) Last week, the NLRB’s General Counsel, who oversees the Board’s 26 field offices, released a memo to assist field offices in responding to